By Medes Malaihollo, Legal Research Master and LLM Public International Law Student at the University of Groningen, medes.malaihollo gmail.com

COVID-19 is having a disproportionately harmful effect on indigenous peoples. Particularly in Brazil, the virus affects the health of these vulnerable groups to such a degree that it constitutes a serious threat to their existence. Many indigenous communities have little to no immunity against most diseases, poor access to health care and experience starvation as a serious outcome due to lockdowns. The virus also has a tremendous impact on the exercise of indigenous traditions and ways of life. The burden of COVID-19 is high for elders, who play a key role in preserving and providing traditional knowledge and practices to future generations. Without them, an immense cultural loss is inevitable.

Clearly, COVID-19 can wipe out whole indigenous communities and indigenous cultures, yet the question remains: how can indigenous peoples sufficiently respond to this virus? One possible solution to this problem is the right to self-determination of peoples.

 Self-determination and indigenous peoples

According to customary international law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2175897), indigenous peoples have the right to self-determination. This means that a people has the legal entitlement to freely choose its political status and freely determine its own economic, social and cultural developments within a State. Understood in this light, the right to self-determination is mostly associated with a certain amount of autonomy of a people within the political entity of a State, requiring a participatory and representative political system. This is also known as the right to internal self-determination.

Central to the right to self-determination are both the freely expressed will of a people and their collective identity. For indigenous peoples, the realisation of this is limited to a right to autonomy or self-government. Nevertheless, an electoral system based upon simple majoritarianism is not adequate enough for them to freely express their will and preserve their collective identity. These groups, after all, are usually non-dominant groups and most likely to be overruled by a majority. Consequently, autonomy or self-governance is not the absolute solution for indigenous problems. A State, in contrast, needs to take additional measures as may be necessary to include indigenous peoples in the decision-making process. An example is the implementation of the principle of free, prior and informed consent (FPIC).

Self-determination as a tool for indigenous peoples to combat COVID-19

In the context of COVID-19, the right to self-determination is an essential norm for indigenous peoples. When they are capable of exercising their right to self-determination, they can control diseases on their own terms. This is important as these communities are at the frontline of the pandemic and have the most experience and knowledge of the social field that is to be regulated. Community-controlled responses around the world have proven to be the most effective responses to infectious diseases for indigenous peoples. Indigenous communities in Australia, for instance, took matters in their own hands before the much slower Australian government took action. Additionally, in the United States the Lummi Nation opted for self-determination as opposed to depending on federally controlled Indian Health Service, which has suffered from severe underfunding.

Another reason for taking the right to self-determination of indigenous peoples seriously during this pandemic is the value of their collective identity. With this come their traditional practices, which are closely connected to their environment. This has been a fundamental source of inspiration for modern medicines. The loss of such source would be immeasurable, especially in times when public health is a priority. Protecting, preserving, strengthening and developing the collective identity of indigenous peoples, therefore, is of great importance. In this connection, FPIC plays an important role. Indigenous peoples have their own solutions when responding to infectious diseases and tremendous wisdom to share. In that context, a participatory process of free discussions, consultations, meetings and agreements between indigenous peoples, States, intergovernmental organisations and the private sector is extremely valuable for exchanging perspectives and information. FPIC is also relevant to fill the existing communication gap between governments and indigenous peoples. That way, the latter can develop and take clear, consistent and appropriate measures to respond to existential threats, now and in the future.

The way forward?

It would be beneficial for States with many indigenous peoples, like Brazil, to fully recognise and appreciate the role such communities can play in this global health crisis. Instead of abandoning them, why not take those feasible measures reasonably available to a State to guarantee the right to self-determination of indigenous peoples? Self-determination is the foundation stone of these peoples. Without it, the viability of the best guardians of the environment and biodiversity cannot be guaranteed. Therefore, securing their right to self-determination is of great importance, especially in times of COVID-19.